IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015701 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015701 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending on 24 January 1975 to show his honorable discharge was affirmed under the provisions of the SDRP and the uniform discharge standards established in 1978, to comply with Public Law 95-126. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015701 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his characterization of service, for the period ending on 24 January 1975, to reflect under honorable condition (general) or honorable. 2. The applicant states he does not believe the Department of Veterans Affairs (VA) had taken the full evidence and circumstances surrounding his discharge into consideration. He was serving diligently for some time before he was affected by the conditions in Vietnam; coupled with the loss of his maternal grandmother in 1970. During his service in Vietnam, he was exposed to death, dead bodies, and the horrors of war constantly. a. He began to drink and use drugs to cope with this environment. It took 5 years for him to become clean and sober; he stopped drinking and using drugs cold turkey. The journey was difficult. Once sober, he turned himself in through the clemency program. He believes that the condition from which he suffers, depression, anxiety, and post-traumatic stress disorder (PTSD) was the direct cause of his absence without leave (AWOL). He offered to go back in service to complete his enlistment. b. When he was 24 years old, he had no coping skills to prepare him for the sights and sounds of Vietnam. He had no skills to face the world to which he came home. His basic combat training and advanced individual training did not prepare him for the emotional onslaught that came with trying to serve. The Armed Force of the United States did not draft him into military service he volunteered to serve. He feels penalized for not having the strength to wrap his mind around the reality of war or the reality of an unpopular period for serving his country. He fought a second was coming home and eventually owned up to his responsibilities for service. He submits that if someone in his command had possessed the understanding of how emotional trauma effects individuals, that he could have received help before he made his unfortunate decisions. c. He asks for consideration of his entire record, and that the Board upgrade his characterization of service to allow him to seek VA compensation of his disability. 3. The applicant provides a self-authored statement. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 30 July 1969. 3. On 15 January 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for AWOL from the Overseas Replacement Detachment, Oakland, CA from on or about 2 January 1970 to on or about 13 January 1970. 4. His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam from 19 January 1970 to 10 December 1970. 5. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably discharged for immediate reenlistment on 7 February 1971. He subsequently reenlisted on 8 February 1971. 6. His record contains a DA Form 268 (Report of Suspension of Favorable Personnel Actions (Flag)), dated 12 June 1972. This form shows the applicant's chain of command initiated a flag against him because he departed AWOL from leave on 7 June 1972. 7. His record contains a DA Form 3545 (Deserter Wanted by the Armed Forces of the United States) dated 6 July 1971 and a DA Form 188 (Extract Copy of Morning Report), dated 7 July 1972, which show the applicant was dropped from the rolls (DFR) as a deserter on 6 July 1972. 8. His record contains a letter, issued by the U.S. Army Enlisted Records Center, Fort Benjamin Harrison, IN, on 25 November 1974. This letter informed the applicant that, by Presidential Proclamation Number 4313, dated 16 December 1974, the President of the United States established a program of clemency for individuals who were AWOL, DFR, or missed movement during the period 4 August 1964 to 28 March 1973, and who had no offenses other than those listed above. The applicant's records were reviewed and it was determined that he was eligible to participate in the clemency program. a. Program participation required that the applicant: (1) agree to participate in the President's program, (2) agree to reaffirm his allegiance to the United States, and (3) pledge to perform alternate service for a period not to exceed 24 months. Alternate service would be administered by the Selective Service System and entailed performance of work in jobs that promote the national health, safety, or interests. b. Another requirement for program participation was that the applicant must physically present himself at Fort Benjamin Harrison. 9. In a letter to the applicant, dated 21 January 1975, subject: Participation in the Program Established by Presidential Proclamation 4313, 16 September 1974, the applicant was informed that, in reference to his letter/telephone call on 17 January 1975: a. he requested to participate in the program established by Presidential Proclamation 4313 of 16 September 1974. A review of his service record indicated he was eligible to participate in the program. Accordingly, should he decide to participate in the program, he was advised to arrive at Fort Benjamin Harrison, IN on or about 23 January 1975. b. Upon reporting, he would be given an opportunity to request a discharge for the good of the service in accordance with existing Department of Defense regulations, to reaffirm his allegiance to his country, and to pledge to perform alternate service for a period not to exceed 24 months. Prior to undertaking these obligations, he would be afforded the opportunity to consult with military legal counsel, who would advise him regarding the adverse nature and effects of receiving and undesirable discharge. Upon completion of the foregoing procedures, he would receive an undesirable discharge. c. Presidential Proclamation 4313 further provides that those servicemen who satisfactorily complete an assigned period of alternate service of not more than 24 months will be issued a Clemency Discharge Certificate 10. On 24 January 1974, the applicant completed an enlisted statement wherein he voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313. In doing so, the applicant acknowledged: a. He understood his absence was characterized as a willful and persistent unauthorized absence for which he was subject to trial by court-martial for a violation of the UCMJ and could lead to the imposition of a bad conduct or dishonorable discharge. He acknowledged that he was making the request of his own free will and had not been subject to any coercion whatsoever by any person. b. He acknowledged that, prior to completing his request, he had been afforded the opportunity to consult with military counsel and that counsel fully advised him as to the nature of the offenses for which he may be tried and the maximum permissible punishment which may be imposed. c. He understood that he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He was advised of and indicated understanding that the adverse nature of such a discharge and the possible consequences thereof. In this regard, he acknowledged that, as a result of the issuance of such a discharge, he would be deprived of all service benefits, that he would be ineligible for all benefits administered by the VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law. He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. d. He understood that within 15 days of the date of receipt of the Undesirable Discharge Certificate, eh must report to his State Director of Selective Service to arrange for performance of alternate service. He further understood that satisfactory completion of such alternative service would be acknowledged by the issuance of a Clemency Discharge Certificate. He realized, however, that such certificate would not alter his ineligibility for any benefits predicated upon his military service. 11. Special Orders Number 17, issued by the U.S. Army Administration Center and Fort Benjamin Harrison on 24 January 1975, directed the applicant's undesirable discharge, effective 24 January 1975, under the provisions of Presidential Proclamation Number 4314, dated 16 September 1974 and Department of Defense Memorandum, subject: Implementation of Presidential Proclamation Number 4313, dated 16 September 1974. 12. The DD Form 214 (Report of Separation from Active Duty) the applicant was issued at the time, confirms he was discharged under the provisions of Presidential Proclamation Number 4314, dated 16 September 1974 and Department of Defense Memorandum, subject: Implementation of Presidential Proclamation Number 4313, dated 16 September 1974, on 24 January 1975. His DD Form 214 lists his characterization of service as under other than honorable conditions, and shows: a. he completed 1 year and 4 months of active service during the period covered, b. he was awarded the Bronze Star Medal, c. he accrued 957 days of lost time, d. he agreed to serve 9 months of alternate service pursuant to Presidential Proclamation Number 4313, and e. he was separated for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation Number 4313. 13. His record contains a letter published by the Army Discharge Review Board (ADRB), dated 9 April 1975. This letter informs the applicant that the ADRB determined the applicant was properly and equitably discharged. Accordingly, the ADRB denied his request for a change in the type and nature of his discharge. 14. His record contains a DD Form 215 (Correction to DD Form 214), dated 3 December 1975. This document was issued to correct item 27 (Remarks) of his DD Form 214 for the period ending on 24 January 1975 by adding the entry – DD Form 1953A Clemency Discharge issued in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation No. 4313. 15. On 27 June 1977, the Office of the Adjutant General, Washington, DC published a letter informing the applicant that his 22 April 1977 application for consideration for an upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) had been reviewed. The Secretary of the Army directed the applicant be informed that the ADRB upgraded his under conditions other than honorable discharge to honorable, effective 27 May 1977. As such, his previously issued DD Form 214 for the period ending on 24 January 1975 was voided and he was issued a new DD Form 214 reflecting an honorable characterization of service. 16. On 6 February 1978, the Department of the Army Office of the Adjutant General and the Adjutant General Center published a letter informing the applicant that the ADRB could not affirm his SDRP upgraded discharge under the review standards required by Public Law 95-126. This letter further informed him that this action would not change his current discharge, but that he was still ineligible for VA benefits. 17. On 6 April 1978, the ADRB published a letter informing the applicant that the ADRB re-reviewed his case under the provisions of Public Law 95-126 and directed The Adjutant General to issue a change to his DD Form 214 to affirm his DOD-SDRP discharge upgrade under Uniform Standards. The letter further informed him that this action would enhance his accessibility to VA benefits. 18. His record contains a DD Form 215, dated 15 May 1978, issued to correct item 27 of his DD Form 214 by adding the entry, "DISCH[ARGE] REVIEWED [UNDER THE PROVISIONS OF] [PUBLIC LAW] 95-126 AND A DETERMINATION MADE THAT CHANGE IN CHARACTERIZATION OF SERVICE IS WARRANTED BY DOD DIRECTIVE." However, his DD Form 215 does not state that his upgrade was affirmed. 19. On 22 December 2016, the Army Review Boards Agency staff psychiatrist published the following advisory opinion. a. The Army Review Boards Agency Psychiatrist was asked to review this case. Documentation reviewed included the applicant’s ABCMR application, his personal statement, and his military personnel records. No military medical records are available for review. The applicant has not answered the letter from the ABCMR, dated 17 Feb 2016, requesting copies of medical documentation supporting the applicant’s claim of PTSD. The applicant did not provide any civilian or VA medical documentation. Additionally, the electronic military medical record was not reviewed, as it was not in use during the applicant’s time in service. b. Review of the applicant’s personal statement indicates that he had consistent exposure to death and dead bodies and other horrors of war while in Vietnam. He states, "I started drinking and doing drugs to cope with this environment…I believe that the disability I suffer, depression, anxiety, PTSD was the direct cause of why I went AWOL." c. Review of his military personnel records indicates that they are void of documentation of any Behavioral Health conditions including PTSD. There is no indication in his military records that the applicant failed to meet military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) Chapter 3 and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. Additionally, no civilian or VA medical documentation no provided and there were no military medical records are available for review. d. Based on the information available at this time, there is insufficient evidence to support the applicant’s contention that his misconduct (being AWOL) was due to PTSD. The applicant has provided no medical documents to substantiate his claim of PTSD. 20. The applicant did not respond to the advisory opinion. REFERENCES: 1. On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for an UOTHC discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA. The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty UOTHC. It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards. On 29 March 1978, these newly established uniform discharge review standards were published in Department of Defense (DOD) Directive 1332-28. 2. The Department of Defense Directive 1332.28 provides the policy and guidance for discharge review. It provides, in pertinent part, that when it is determined that the rights of an individual were prejudiced by an error of fact, law, procedure or discretion such error will be considered material if there is substantial doubt that the discharge would have remained the same if the error had not occurred. 3. The Department of Defense (DOD) SDRP was directed in a memorandum from the Secretary of Defense in 1977. The SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.” It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a GD was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Eligibility for the program was restricted to individuals discharged with either an UD, UOTHC or a GD between 9 August 1964 and 28 March 1973, inclusive. Individuals could have their discharges upgraded if they met any one of the following criteria: * wounded in action * received a military decoration other than a service medal * successfully completed an assignment in Southeast Asia * completed alternate service * received an HD from a previous tour of military service; or * completed alternate service or excused therefrom in accordance with Presidential Proclamation 4313 of 16 September 1974. DISCUSSION: 1. The evidence of record confirms the applicant was separated for the good of the service by reason of a willful and persistent unauthorized absence pursuant to Presidential Proclamation Number 4313, with an under other than honorable conditions; a Clemency discharge. 2. The applicant’s record also shows that the ADRB upgraded his under other than honorable conditions character of service to honorable on 27 May 1977, under the provisions of the SDRP and this was affirmed on 6 April 1978, under uniform discharge standards established in 1978, to comply with Public Law 95-126. 3. In view of the foregoing and as a matter of justice, it would be appropriate to issue a DD Form 215 clearly stating his honorable discharge was affirmed on 6 April 1978. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015701 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015701 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2